13 October 2021

70% vaccination and going strong! But can a landlord require a tenant to be vaccinated?

In this ever-evolving COVID-19 world, it is a race against time to define the “new normal”, and the property industry is no exception.

Recently, a landlord client approached us and asked whether it could require its tenants (including the tenant’s staff and visitors) in a commercial office building to be vaccinated against COVID-19, so that the building could be labelled a “COVID-19 safe” building.

Great question! However, there is no simple answer at the moment and there are several issues to consider including privacy laws, human rights and discrimination laws, a tenant’s right to quiet enjoyment, vaccine passports and public health orders. But ultimately, this will be a question for parliament, and failing that, the courts.

As the former Premier, Gladys Berejiklian, has rightly noted, "we are in uncharted territory".

Public health orders and the Government’s approach

The Government has made its intentions regarding COVID-19 vaccinations clear. That is, it will not be mandatory to get vaccinated against COVID-19, but you can only enjoy certain freedoms if you have been vaccinated.

The former Premier stated that “at 70%, if you’re not vaccinated, it will be a health order and the law that if you’re not vaccinated, you can’t attend venues on the roadmap… you can’t go into a hospitality venue. You can’t go to ticketed events unless you are vaccinated. We made that very clear.”

So, even if a landlord itself may not be entitled to mandate COVID-19 vaccinations for its tenants, it is likely that the public health orders will do so in some way, shape or form. Certain venues will remain closed or operate under restrictions until vaccination targets are met, there are a growing number of freedoms that may only be enjoyed by the fully vaccinated, and the list of employees for which vaccination is mandatory is expanding. If tenants and their employees and customers want to take advantage of easing restrictions – they are going to have to play ball.

Terms of the lease

In the first instance, we need to look to the terms of the lease when considering whether a landlord can impose an obligation on its tenant to get vaccinated. Given that the pandemic is the first of its kind in our lifetime, it is extremely unlikely that any lease would contain provisions that specifically address this question.

Comply with all laws

Most leases would contain a provision that requires the tenant to comply with all laws and the requirements of all government agencies in relation to the premises and the tenant’s use of and operations at the premises (including complying with work health and safety laws).

Therefore, if a tenant were to operate in breach of a public health order or other law which requires tenants, employees or their visitors to be vaccinated, then the tenant would also be in breach of its lease. The landlord could rely on the ’comply with all laws’ clause to issue a breach notice and require rectification of that breach within a reasonable time. If the tenant does not do so, the landlord may terminate the lease.

However, for the reasons set out below, it may be very difficult for a landlord to gather the evidence required to assert that a breach has occurred and to enforce mandatory vaccinations – and termination of the lease is not always the ideal result, particularly in the current market.

Conversely, it would be very difficult for a tenant to claim an abatement of rent or seek to terminate its lease if it is unable to trade or carry out the permitted use because it has chosen not to mandate vaccinations for its staff and visitors pursuant to applicable public health orders or other laws. Therefore, a landlord may be left with a tenant which cannot trade, and a tenant which has no recourse under the lease.

Right to quiet enjoyment

It is an implied term of every lease that a tenant is entitled to quiet enjoyment, that is, the tenant has the right to use and occupy the premises without substantial or unreasonable interference by the landlord.

This right is subject to the terms of the lease and any rights expressly reserved by the landlord, which could include the right to close premises in an emergency or in accordance with a law.

However, a court might consider a landlord’s requirement for mandatory COVID-19 vaccinations to be a breach of the tenant’s right to quiet enjoyment, especially in circumstances where vaccination is not required by law for the tenant’s particular use of the premises.

Specific Lease Clause

If it felt so strongly about the issue, going forward a landlord could include a carefully considered clause as part of its standard lease document which requires tenants to use reasonable endeavours to ensure that its employees and visitors are vaccinated. Query what the ramifications would be and how such a clause might be enforced given privacy and anti-discrimination laws (discussed below).

Mandatory vaccinations in the workplace

As it is only early days, we have not seen much discussion on the validity of mandatory vaccinations other than in the context of employees and workplaces.

You can read our take on mandatory vaccinations in the workplace here: No jab, no job, no problem? Not quite.

You will see that it is not a clear-cut answer as to whether an employer can require an employee to be vaccinated against COVID-19 unless it has been mandated under a public health order. Issues such as collecting, using, and sharing personal health information in accordance with privacy laws, ensuring a safe workplace for employees and visitors and compliance with anti-discrimination laws must all be considered when determining whether an employer can mandate vaccinations for its employees, and each case will turn on its own facts.

Although both are contractual relationships, the relationship between an employer and employee is far removed from the relationship that a landlord has with its tenant – so the same logic cannot be applied to both situations when considering mandatory vaccinations.

Landlords must be aware of their work health and safety obligations and their obligation to provide a safe space for visitors to their premises (particularly, for example, while visitors are using common areas of a centre or building).

Anti-discrimination laws

If a landlord did seek to require its tenants and visitors to be vaccinated, it should be careful not to fall foul of any relevant anti-discrimination laws. For example, enquiring about the vaccination status of a new tenant as part of the tenancy application process may be dangerous if the decision to not proceed with a tenant is directly linked to vaccination status or reluctance to disclose vaccination status.

Not that excluding someone because they have not been vaccinated against COVID-19 is necessarily illegal discriminatory behaviour. Section 48 of the Disability Discrimination Act 1992 (Cth) specifically allows a person to discriminate against another on the grounds of disability, if that disability is an infectious disease, and the discrimination is reasonably necessary to protect public health. This would likely extend to those who are not vaccinated against COVID-19, but ultimately we will have to see how the courts choose to interpret this.

It is, of course, discriminatory to exclude someone who cannot be vaccinated against COVID-19, due to another disability or medical condition which precludes vaccination.

Privacy laws

Generally speaking, an employer requires consent from its employee in order to collect vaccination status information, and this information must be reasonably necessary for the employer to carrying out its functions or activities. However, in limited circumstances, an employer can require an employee to disclose this information even without consent, if it is required or authorised by law.

Accordingly, it may be a tricky area for a landlord to navigate and enforce if it required a tenant and the tenant’s employees to be vaccinated. Even if the tenant’s employees are vaccinated, we query whether a tenant can legally disclose this information to a landlord, without the employees’ consent, without breaching the Privacy Act 1988 (Cth).

Conclusion

In short, it’s a bit of a minefield at the moment! It would be tricky from a legal point of view for a landlord to require all tenants (and their employees and visitors) to be vaccinated where public health orders or other laws do not also require vaccination. However, we anticipate the situation will change as more people become vaccinated, the government’s policies evolve, and cases begin to wash through the courts.

Authors: Kristie Carlile and Julia Yassa

Contributing partner: David Creais